Filed 9/28/17 P. v. Forbes CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Colusa)

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Charged with multiple offenses in Colusa County, including first degree burglary with an own recognizance (OR) enhancement, defendant Lonnie Leroy Forbes entered into a plea agreement under which he would receive four years of probation after successfully completing two years of substance abuse rehabilitation. However, on the scheduled date of sentencing, defendant was in custody in Glenn County on prior charges. The Colusa County trial court continued sentencing in deference to the Glenn County proceedings.

While defendant was in custody in Glenn County, the trial court there ordered him to undergo rehab. He completed a six-month inpatient program, but left a second program after a week and did not attempt to enter any other. Subsequently, he was convicted of “escape” and incarcerated at Deuel Vocational Institution (DVI).

Over three years after defendant entered his plea in Colusa County, he finally appeared there for sentencing. Defense counsel did not request probation, but argued successfully for a middle term sentence.

Defendant contends he is entitled to specific performance of his plea agreement—that is, the opportunity to complete two years of substance abuse rehabilitation as a precondition to probation. He reasons that because the Colusa County court never actually ordered rehabilitation or explained what it would entail, his failure to complete it did not violate any term of his plea agreement. He also contends that if this contention is forfeited for failure to raise it below, he received ineffective assistance of counsel.

We conclude defendant’s contention is forfeited, and trial counsel was not ineffective for failing to request probation because there is no reasonable likelihood the trial court would have granted it. Therefore, we affirm defendant’s sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of June 13, 2013, defendant cut a chain on a private road, drove his vehicle onto the victim’s property, broke into the victim’s house, and took numerous items. Defendant’s wife admitted accompanying defendant on “a drive” and admitted they were on the victim’s property but denied taking anything. Interviewed at the Glenn County Jail, where he was detained on a pending matter, defendant blamed his crimes on his drug habit, specifically methamphetamine, which he used daily. He hoped for the opportunity to complete a rehabilitation program. However, he had been in such programs before, including a six-month program at the Salvation Army in Sacramento, and had not been able to stay off drugs.

A first amended complaint filed June 17, 2013, charged defendant with first degree burglary (Pen. Code, § 459/462, subd. (a)—count I);[1] possession of stolen property (§ 496—count II); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)—count III); child endangerment (§ 273a, subd. (b)—count IV); and possession of narcotics paraphernalia (Health & Saf. Code, § 11364—count V). As to count I, the complaint alleged that defendant committed the charged offense while released on his own recognizance in Glenn County (§ 12022.1).

On June 26, 2013, defendant entered a plea of guilty on count I and admitted the OR enhancement. In return, the district attorney moved to dismiss the balance of the charges. The parties agreed that defendant would be “permitted to attend a two-year rehab,” to be followed by four years of formal probation; the probation period would not begin to run until after rehab was completed. Defendant stated that he understood he would receive no presentence custody credit for any time spent in rehab. Defense counsel stated that he was looking for a rehab program for defendant. The trial court referred the matter for a probation report to be submitted by August 6, 2013, and set sentencing for August 13, 2013.

The probation report noted that defendant’s maximum exposure on count I was six years in state prison, plus two years for the OR enhancement. He was presumptively ineligible for probation barring unusual circumstances because he had more than two prior felony convictions, and this case did not appear to fit the criteria for an unusual case. He appeared remorseful, and willing and able to comply with the terms of probation; however, his record indicated a pattern of increasingly serious criminal conduct, he had served a prior prison term, and his prior performance on probation was unsatisfactory. The probation officer considered this an appropriate case for an upper term sentence.

On August 13, 2013, the date set for sentencing, the trial court announced that defendant was not present and ordered a bench warrant. It was the court’s understanding that “maybe he is in jail elsewhere.”

On September 17, 2013, noting that defendant had filed a demand pursuant to section 1381 to be brought to trial in the Colusa County case, the People requested defendant’s removal from Glenn County Jail and his deliverance to Colusa County Superior Court on October 1, 2013. The trial court so ordered.

On September 24, 2013, defendant appeared in Colusa County and was arraigned. Sentencing was set for October 1, 2013.

At the sentencing hearing on October 1, 2013, defense counsel stated: “[Defendant] was hoping, because he’s got the sentence situation in Glenn County, to get sentenced here and try to work it all out, but I explained to him that would be detrimental to his long-term plan and his plan to get into [a residential program at] Delancey Street [Foundation], and how that works as far as resentencing, so we’re just going to request that the matter be continued until . . . after April 12, 2014, when he is done with Glenn County, for sentencing.” The trial court released defendant on the understanding that he would immediately return to Glenn County Jail, and continued the matter to October 8, 2013, so that defendant would be required to appear in Colusa County at that time if Glenn County released him.

On October 8, 2013, defense counsel informed the trial court that defendant was in custody in Glenn County, where the court took the view that the outstanding Colusa County case barred defendant from doing programs in Glenn County. The trial court issued a bench warrant for defendant’s arrest.

On October 23, 2013, defense counsel requested that the matter be placed on calendar for October 29, 2013, in order to recall defendant’s warrant.

On October 29, 2013, the trial court recalled the warrant and put the matter over for sentencing to February 18, 2014, so defendant would be able to do out-of-jail work programs in Glenn County in the interim.

On February 18, 2014, defense counsel informed the trial court that defendant was still serving time in Glenn County, but would be done soon. The court reissued the bench warrant.

On February 28, 2014, defense counsel requested placing the matter on calendar for March 4, 2014, to recall the warrant.

On March 4, 2014, defense counsel provided the trial court with a letter from the Salvation Army in Chico, stating that defendant had entered their six-month rehab program on December 19, 2013, and was doing well. Defense counsel informed the court that because of the Colusa County warrant, Glenn County believed it would have to pull defendant out of the Salvation Army program and put him back in jail, which would delay his release date. The court recalled the warrant and continued sentencing to April 22, 2014.

On April 22, 2014, noting the letter from the Salvation Army, the trial court continued sentencing to May 27, 2014.

On May 27, 2014, the trial court received a followup letter from the Salvation Army stating that defendant was expected to complete the Salvation Army Adult Rehabilitation Program in Chico on June 18, 2014. The court continued sentencing to June 24, 2014; however, it does not appear that any hearing was held on that date.

On July 1, 2014, the trial court received a letter from Delancey Street Foundation in San Francisco (hereafter Delancey Street), stating that defendant entered the program on June 25, 2014, and had been in residence since then. Defense counsel informed the court that after defendant completed the Salvation Army program, he was transported from Glenn County Jail directly to Delancey Street, which was a two-year program. The court continued the matter to October 7, 2014.

On July 23, 2014, the trial court learned from Delancey Street that defendant left the program of his own accord on July 18, 2014, without successfully completing it. Defense counsel requested the matter be placed on calendar for July 29, 2014.

On July 29, 2014, defense counsel could provide no further information about defendant. The trial court ordered a no-bail warrant for defendant’s arrest.

On April 25, 2016, the trial court received a section 1381 demand for trial from defendant, stating that on March 4, 2016, he received a three-year sentence for “escape” and was now incarcerated at DVI.

On June 28, 2016, after transfer from DVI, defendant was arraigned and held without bail at Colusa County Jail. Sentencing was set for July 5, 2016.

On July 5, 2016, defendant’s newly appointed counsel requested and received a continuance of sentencing to July 12, 2016. On that date, the trial court continued sentencing until August 16, 2016, in order to obtain a new probation report.

The probation report, received by the trial court on August 9, 2016, recommended immediate imposition of the upper term sentence proposed in the 2013 report.

After defendant left the Delancey Street program, he did not report to either Colusa County or Glenn County. Glenn County filed a charge of escape from jail (§ 4532, subd. (b)(1)) against him on August 18, 2014. He had outstanding arrest warrants from both counties until his arrest by Glenn County on June 12, 2015. On December 10, 2015, defendant was convicted in Glenn County of escape with a prior prison term enhancement, and sentenced to a state prison term consisting of one year four months for escape, one year consecutive for the enhancement, and eight months consecutive for a violation of section 69 in a prior case.

According to defendant, he left Delancey Street because he did not like the way it was run, feeling it to be inconsistent with the 12-step approach he had learned at the Salvation Army. He did not contact his attorney or the probation department of either Glenn County or Colusa County “for fear of incarceration.” He was apologetic about his failure to turn himself in and hoped the trial court would give him another chance at probation or inpatient rehabilitation. He felt he had served his time already and additional prison time would not benefit him. He wanted to reunite with his 10-year-old son.

On August 16, 2016, at defense counsel’s request, the trial court continued sentencing to September 13, 2016. According to the reporter’s transcript, counsel wanted the opportunity to file a sentencing brief; according to the minute order, counsel also asked for more time to research rehabilitation programs.

On September 13, 2016, defense counsel requested a further continuance so that defendant could seek retained counsel for sentencing. The trial court continued the matter to September 27, 2016.

On September 27, 2016, at the request of defendant’s newly retained counsel, the trial court continued sentencing to October 12, 2016.

On October 12, 2016, defense counsel requested the opportunity to file a sentencing brief. The trial court continued sentencing to November 9, 2016.

Defendant’s sentencing brief asked the trial court to impose one aggregate prison term that would include the Glenn County matters. Counsel did not request any other disposition. However, the brief attached a handwritten letter from defendant requesting postrelease community supervision or reenrollment in the Salvation Army rehabilitation program.

On November 9, 2016, the case finally came on for sentencing. After ruling that it lacked jurisdiction over the Glenn County matters because defendant had already served his time on those cases, the trial court indicated its intent to sentence defendant to the middle term. The People argued for the upper term recommended by probation, based on defendant’s long criminal history and repeated failures to deal with his drug habit. Defense counsel concurred with the court’s middle term proposal, asserting that defendant’s prior criminal record was mostly drug related and included only one offense that would be a felony under current law.

The trial court found that defendant was presumptively ineligible for probation and there were no unusual circumstances that could overcome that presumption. Furthermore, even if unusual circumstances existed, the court would not grant probation because of defendant’s increasingly serious criminal history and his unsatisfactory prior performance on probation. The court imposed the middle term of four years because defendant “induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission.” The court added two years for the OR enhancement, for a total of six years in state prison.

DISCUSSION

Defendant contends, “Because the trial court never ordered [defendant] to the agreed-upon rehabilitation as part of the plea bargain, [defendant] cannot have violated the agreement to attend rehab.” Since the public defender who initially represented him in the 2016 proceedings stated the intent to research rehab programs, rehabilitation was apparently still an option at that point despite the court’s finding that defendant had violated his postplea obligations. Thus, according to defendant, he did not get the benefit of his bargain; furthermore, because he did not get guidance as to rehab from the trial court or the opportunity to explain himself at sentencing, the court’s imposition of sentence violated due process. Defendant contends further that if this claim is forfeited because trial counsel did not demand the due process to which defendant was entitled before sentencing, counsel was ineffective. According to defendant, the remedy for these alleged violations is to remand the matter with directions to permit defendant to participate in a rehab program, thus implementing the reasonable expectations of the parties when defendant entered his plea in 2013. (Cf. People v. Mancheno (1982) 32 Cal.3d 855, 861 (Mancheno).)

We conclude (1) defendant’s contention is forfeited because trial counsel did not make any such argument or request any such remedy at sentencing and (2) counsel was not ineffective for failing to do so because it is inconceivable that the trial court would have granted defendant another chance at a two-year rehabilitation program in light of everything that had happened since he entered his plea some 40 months earlier.

If a party, knowing in advance how the trial court might exercise its discretion at sentencing, fails to object to the court’s intended sentence or argue for a different sentence, any claim of sentencing error is forfeited on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant knew in 2013 that the probation department recommended the upper term, noting that he was presumptively ineligible for probation and no unusual circumstances existed that could overcome the presumption, but that the plea agreement had taken that sentence off the table. Defendant was on notice well before the date of sentencing in 2016 that the probation department still recommended the upper term. He also knew or reasonably should have known that after dropping out of Delancey Street, absconding from custody, evading bench warrants from two counties for over a year, and finally being convicted of escape, he was far less likely in 2016 to be deemed a suitable candidate for probation than in 2013. Under the circumstances, counsel’s failure to advocate for probation forfeited any claim that defendant was still entitled to it.

For the reasons already mentioned, counsel was not ineffective in failing to request probation or a renewed chance at rehabilitation. Contrary to defendant’s assertion, the fact that his just-appointed 2016 counsel sought a continuance in part to research rehabilitation programs does not show that rehabilitation was still an option in the trial court’s mind at that point. The court did not comment on the record about that request, and the court would have granted a continuance in any event because counsel needed time to file a sentencing brief.

Furthermore, there is no evidence that any such “research” was or could have been productive, given defendant’s near-instant departure from Delancey Street and his apparent failure to benefit from two prior Salvation Army programs. In light of that track record, as well as his history of absconding and evading arrest, his subsequently retained counsel could reasonably have concluded it would be futile to request rehabilitation yet again. In any event, we cannot find ineffective assistance of counsel on direct appeal where the record is silent as to the reasons for counsel’s conduct unless there simply could not be a good explanation, which is not the case here. (People v. Maury (2003) 30 Cal.4th 342, 389.)

But even if defendant’s contention were properly before us, it would fail on the merits because the record does not support the premise that he did not understand, and could not have understood without further on-the-record explanation from the trial court, what undergoing two years of rehabilitation meant. First, defendant knew what inpatient residential rehab entailed because he had completed a six-month program at the Salvation Army before the present case arose.[2] Second, his counsel stated on the record that defendant had a long-term plan to enter Delancey Street, which everyone involved in the case knew to be an inpatient residential program. Third, his plea expressly included a waiver of any custody credits he might otherwise have earned in rehab, and such credits can be earned only by entering a “rehabilitation facility”—i.e., an inpatient residential treatment program. (§ 2900.5, subd. (a); People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.)

So far as defendant asserts that he is entitled to specific performance of the plea agreement, the argument is refuted by Mancheno, supra, 32 Cal.3d 855, on which he purports to rely. Even assuming the trial court violated the plea bargain, a court cannot be constrained to enforce the plea if doing so would limit the judge’s discretion “in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing” or would “bind[] the trial judge to a disposition that he or she considers unsuitable under all the circumstances.” (Id. at pp. 860-861.) Here, defendant’s conduct in the three years following his entry of plea provided abundant evidence of “additional information or changed circumstances.” Moreover, the court agreed with probation that defendant was statutorily ineligible for probation (as he had been all along) and that no unusual circumstances existed to justify overcoming that presumption; thus, it is inconceivable that the court would consider probation an appropriate disposition at this point.

Defendant received an extraordinary benefit from the court when it accepted the plea agreement in 2013. The court cannot now be bound to a disposition it would plainly consider unsuitable.[3]

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

RAYE , P. J.

BLEASE , J.